The intelligencer. [volume] (Lexington, Mo.) 1887-1891, 1887-12-17
THE SUPREME COURT DECISION AS
TO PROHIBITION.

EDITOR INTERCHANGEABLE de-
cision of the supreme court of the
United States delivered by Justice
Harlan in the Kansas prohibition cases,
is a surprise to many members of the
bar, and has been and still is the sub
ject of much comment, and we'll 1t may
be, for it is extreme in its positions,
and alarming in its assumptions and
practical effect. 1t usurps the whole
field of police power az to intoxicating
liquors within the state of Kansas. And
the same exercise of power will follow
and be %interposed and exerted in all
other states that may enact prohibition
laws. And thus finally all police power
in all the states will be in the courts Of
the United States. And this, notwith-
standing the fact that the supreme
court of the United States, has itself
repeatedly decided and held that the
United States has no police pOWers
withim state limits. Here l make one
reference only; United States vs.. De-
Witt, 9 Wallace Al. None deny this
position; it is admitted by Harlan him.
self in his opinion in question.
Justice Harlan very properly sub
s~tantially says, that the validity of the
state statutes in question, depends on
the rightful power of the Kansas legis-
iature to enact such laws, and assumes
that the legislature had the power and
does not give the source of the power
whether inherent in the Legislature OF
derived from the state constitution. We
know that the legislature of Kansas
had only such powers as are conferred
Sy the state constitution. Very strangely
he does not mention the state cOnstitu-
ton or make reference to its provisions
under which he claims the powers,
does not say that he ever even read or
saw the constitution. He does speak
of natural rights reserved or not sur
rendered by the people, and says the
right of the citizen to manufacture
intoxicating liquors for his W use
was not n of those SO reserved or
not surrendered.
| am Just in Justice Harlan's fix; it
has been so long since l read the con-
stitution of Kansas that 1 have forgot
ten its provisions on the subject of
police powers, and assuming that they
are in substance the same with those of
the constitution of Missouri, l copy
provisions as follows:
.s7He people of this state hare Tie IN
herent, sole and exclusive right to regu-
late the internal government and police
thereof"
"Ihat all persons haze q natural
right to life. liberty and the enjoyment
of-he gains Of their oWn industry. and
10 qiUe security to those things is the
principal office Of government, and
lohen Government docs not confer this
security, ii fails of its chief design"
"Thc enumeration IN this constitution
of certain rights shall not be construed
to impair, deny or disparage Others
retained by the people,"
These are all the provisions that seem
10 have a bearing on the police power,
and there is nothing in the constitution
expressly comforting police poaner on
She legislature, and nothing in terms
prohibiting its exercise by statute. 1t
will be seen from these constitutional
provisions that the citizen has a natural
right 10 .sMe enjoyment of the gains OF
his Own industry.' And this right no
law and no court can take from him,
but if there be doubt of the enumera-
ton of this right, as affected by the
question involved, it is declared and
provided that nothing in the constitn-
tiOn shall be construed to deny, i'm
pair or disparage other natural rights
not enumerated, but retained by the
people.
There is no better place than just
here to say that at the time of the max
ing and adoption of the Missouri and of
the Kansas constitution, the citizen
had the right, and it was q natural
right, to convert his crops of corn and
rye into whisky, and his apples aud
peaches into brandy, and such whisky
and brandy were the ''gains of bis in
eiustry," secured TO him by the con-
stitution of his state, of which no law
and no court could deprive him.
The constitution is what it purports
90 be and is, and its provisions ought
10 be construed as they were intended
20 be by itsframers, the representatives
of the people in whom the constitution
declares the police power to be inner
ent. Let any honest man of mature
mind and Judgment, ask himself on
his honor and conscience, if he be-
iieves che members of the convention
who framed u constitution or the
constitution of Kansas, Intended by
any of its provisions, to give authority
to the legislature to declare by enact
ment q mandatory or distillery to be
q nuisance, and enforce its abatement
and destruction to the ruin of the own
er. Such a man can give but one an-
swer, and an honest, upright judge
will give the
1t is only by construction of the con.
stitution that the legislature can enact
police laws. None deny that the legis-
Iature has power to enact police laws,
but this power has its limits. Justice
Harlan himself says:-ssIt does not at
all follow from these principles that
every statute enacted ostensibIy for the
promotion of these ends, (public
morals, public health or public safety,
is to be accepted as a legitimate exsr-
ton of the police power of the state.
There are limits beyond which legisla-
ton cannot ri htfully co." and further
on saws it is the solemn duty of the
court to determine whether these
limits have been passed." He asks,
Sswhat authority Is to determine wheth-
er the manufacture of particular drinks,
either for general use or for the par
ticular use of the makers will %iniuri-
ously effect the public" And says:
"Under oursystem that power is lodged
with the legislative branch of the
government. 1t belongs to that depart
mani IN oyorf what ORC Cpoun ae th<